G.R. No.

222702, April 05, 2016

RAPPLER, INC., Petitioner, v. ANDRES D. BAUTISTA, Respondent.

RESOLUTION

CARPIO, J.:

Petitioner Rappler, Inc. (petitioner) filed a petition for certiorari and prohibition against Andres D.
Bautista (respondent), in his capacity as Chairman of the Commission on Elections (COMELEC). The
petition seeks to nullify Part VI (C), paragraph 19 and Part VI (D), paragraph 20 of the Memorandum of
Agreement (MOA) on the 2016 presidential and vice-presidential debates, for being executed without or
in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction and
for violating the fundamental rights of petitioner protected under the Constitution. The MOA, signed on
13 January 2016, was executed by the COMELEC through its Chairman, respondent Bautista, and
the Kapisanan ng mga Brodkaster ng Pilipinas (KBP), and the various media networks, namely: ABS-CBN
Corporation, GMA Network, Inc., Nine Media Corporation, TV5 Network, Inc., Philstar Daily, Inc.,
Philippine Daily Inquirer, Inc., Manila Bulletin Publishing Corporation, Philippine Business Daily Mirror
Publishing, Inc., and petitioner. Under the MOA, the KBP was designated as Debate Coordinator while
ABS-CBN, GMA, Nine Media, and TV5, together with their respective print media partners were
designated as Lead Networks.

Petitioner alleged that on 21 September 2015, respondent called for a meeting with various media
outlets to discuss the "PiliPinas 2016 Debates," for presidential and vice-presidential candidates, which
the COMELEC was organizing.1 Respondent showed a presentation explaining the framework of the
debates, in which there will be three presidential debates and one vice presidential debate. Respondent
proposed that petitioner and Google, Inc. be in charge of online and social media engagement.
Respondent announced during the meeting that KBP will coordinate with all media entities regarding
the organization and conduct of the debates.

On 22 September 2015, petitioner sent a proposed draft for broadcast pool guidelines to COMELEC and
the KBP. A broadcast pool has a common audio and video feed of the debates, and the cost will be
apportioned among those needing access to the same. KBP informed petitioner that the proposal will be
discussed in the next meeting.

On 19 October 2015, another meeting was held at the COMELEC office to discuss a draft MOA on the
debates. In the draft, petitioner and Google's participation were dropped in favor of the online outlets
owned by the Lead Networks. After the meeting, the representatives of the Lead Networks drew lots to
determine who will host each leg of the debates. GMA and its partner Philippine Daily Inquirer
sponsored the first presidential debate in Mindanao on 21 February 2016; TV5, Philippine Star, and
Businessworld sponsored the second phase of presidential debate in the Visayas on 20 March 2016;
ABS-CBN and Manila Bulletin will sponsor the presidential debate to be held in Luzon on 24 April 2016;
and the lone vice-presidential debate will be sponsored by CNN, Business Mirror, and petitioner on 10
April 2016. Petitioner alleged that the draft MOA permitted online streaming, provided proper
attribution is given the Lead Network.
On 12 January 2016, petitioner was informed that the MOA signing was scheduled the following day.
Upon petitioner's request, the draft MOA was emailed to petitioner on the evening of 12 January 2016.
Petitioner communicated with respondent its concerns regarding certain provisions of the MOA
particularly regarding online streaming and the imposition of a maximum limit of two minutes of debate
excerpts for news reporting. Respondent assured petitioner that its concerns will be addressed
afterwards, but it has to sign the MOA because time was of the essence. On 13 January 2016, petitioner,
along with other media networks and entities, executed the MOA with the KBP and the COMELEC for
the conduct of the three presidential debates and one vice-presidential debate. Petitioner alleged that it
made several communications with respondent and the COMELEC Commissioners regarding its concerns
on some of the MOA provisions, but petitioner received no response. Hence, this petition.

In this petition for certiorari and prohibition, petitioner prays for the Court to render judgment:

a. Declaring null and void, for being unconstitutional, pertinent parts of the Memorandum of Agreement
that violate the rights of the Petitioner, specifically Part VI (C), paragraph 19 and Part VI (D), paragraph
20 [of the MOA];

b. Prohibiting the Respondent from implementing specifically Part VI (C), paragraph 19 and Part VI (D),
paragraph 20 of the MOA;

c. Pending resolution of this case, issuing a Preliminary Injunction enjoining the Respondent from
implementing Part VI (C), paragraph 19 and Part VI (D), paragraph 20 of the MOA; and

d. Pending resolution of this case, issuing a Preliminary Mandatory Injunction requiring the Respondent
to ensure an unimpaired and equal access to all mass media, online or traditional, to all the Debates.2

Part VI (C), paragraph 19 and Part VI (D), paragraph 20 of the MOA read:

VI

ROLES AND RESPONSIBILITIES OF THE LEAD NETWORKS

xxxx

C. ONLINE STREAMING

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19. Subject to copyright conditions or separate negotiations with the Lead Networks, allow the debates
they have produced to be shown or streamed on other websites;

D. NEWS REPORTING AND FAIR USE

20. Allow a maximum of two minutes of excerpt from the debates they have produced to be used for
news reporting or fair use by other media or entities as allowed by the copyright law: Provided, that the
use of excerpts longer than two minutes shall be subject to the consent of the Lead Network
concerned;3

Respondent argues that the petition should be dismissed for its procedural defects. In several cases, this
Court has acted liberally and set aside procedural lapses in cases involving transcendental issues of
public interest,4 especially when time constraint is a factor to be considered, as in this case. As held
in GMA Network, Inc. v. Commission on Elections:5

Respondent claims that certiorari and prohibition are not the proper remedies that petitioners have
taken to question the assailed Resolution of the COMELEC. Technically, respondent may have a point.
However, considering the very important and pivotal issues raised, and the limited time, such
technicality should not deter the Court from having to make the final and definitive pronouncement that
everyone else depends for enlightenment and guidance. "[T]his Court has in the past seen fit to step in
and resolve petitions despite their being the subject of an improper remedy, in view of the public
importance of the issues raised therein.6

The urgency to resolve this case is apparent considering that the televised debates have already started
and only two of the scheduled four national debates remain to be staged.7 And considering the
importance of the debates in informing the electorate of the positions of the presidential and vice-
presidential candidates on vital issues affecting the nation, this case falls under the exception laid down
in GMA Network, Inc. v. Commission on Elections.

Petitioner is a signatory to the MOA. In fact, the sole vice-presidential debate, to be held in Manila on 10
April 2016, will be sponsored by CNN Philippines (owned and operated by Nine Media Corporation) and
its partners Business Mirror and petitioner. Petitioner, however, is alleging that it is being discriminated
particularly as regards the MOA provisions on live audio broadcast via online streaming. Petitioner
argues that the MOA grants radio stations the right to simultaneously broadcast live the audio of the
debates, even if the radio stations are not obliged to perform any obligation under the MOA. Yet, this
right to broadcast by live streaming online the audio of the debates is denied petitioner and other online
media entities, which also have the capacity to live stream the audio of the debates. Petitioner insists
that it signed the MOA believing in good faith the issues it has raised will be resolved by the COMELEC.

The provisions on Live Broadcast and Online Streaming under the MOA read:

VI
ROLES AND RESPONSIBILITIES OF THE LEAD NETWORKS

xxxx

B1. LIVE BROADCAST

10. Broadcast the debates produced by the Lead Networks in their respective television stations and
other news media platforms;
11. Provide a live feed of the debate to other radio stations, other than those of the Lead Network's, for
simultaneous broadcast;

12. Provide a live feed of the debates produced by them to radio stations not belonging to any of the
Lead Networks for simultaneous broadcast;

xxxx

C. ONLINE STREAMING

17. Live broadcast the debates produced by the Lead Networks on their respective web sites and social
media sites for free viewing by the public;

18. Maintain a copy of the debate produced by the Lead Network on its on-line site(s) for free viewing
by the public during the period of elections or longer;

19. Subject to copyright conditions or separate negotiations with the Lead Networks, allow the
debates they have produced to be shown or streamed on other websites;8 (Boldfacing and
underscoring supplied)

Petitioner's demand to exercise the right to live stream the debates is a contractual right of petitioner
under the MOA. Under Part VI (C), paragraph 19 of the MOA, the Lead Networks are expressly
mandated to "allow the debates they have produced to be shown or streamed on other websites," but
"subject to copyright conditions or separate negotiations with the Lead Networks." The use of the
word "or" means that compliance with the "copyright conditions" is sufficient for petitioner to exercise
its right to live stream the debates in its website.

The "copyright conditions" refer to the limitations on copyright as provided under Section 184.1(c) of
the Intellectual Property Code (IPC), thus:

SEC. 184. Limitations on Copyright. - 184.1 Notwithstanding the provisions of Chapter V, the following
acts shall not constitute infringement of copyright:

xxxx

(c) The reproduction or communication to the public by mass media of articles on current political,
social, economic, scientific or religious topic, lectures, addresses and other works of the same nature,
which are delivered in public if such use is for information purposes and has not been expressly
reserved; Provided, That the source is clearly indicated; (Sec. 11, P.D. No. 49) (Boldfacing and
underscoring supplied)

Under this provision, the debates fall under "addresses and other works of the same nature." Thus, the
copyright conditions for the debates are: (1) the reproduction or communication to the public by mass
media of the debates is for information purposes; (2) the debates have not been expressly reserved by
the Lead Networks (copyright holders); and (3) the source is clearly indicated.

Condition 1 is complied because the live streaming by petitioner is obviously for information purposes.
Condition 2 is also complied because Part VI (C), paragraph 19 of the MOA expressly "allow[s] the
debates x x x to be shown or streamed on other websites," including petitioner's website. This means
that the "reproduction or communication (of the debates) to the public by mass media x x x has not
been expressly reserved" or withheld. Condition 3 is complied by clearly indicating and acknowledging
that the source of the debates is one or more of the Lead Networks.

Part VI (C), paragraph 19 of the MOA, which expressly allows the debates produced by the Lead
Networks to be shown or streamed on other websites, clearly means that the Lead Networks have not
"expressly reserved" or withheld the use of the debate audio for online streaming. In short, the MOA
expressly allows the live streaming of the debates subject only to compliance with the "copyright
conditions." Once petitioner complies with the copyright conditions, petitioner can exercise the right to
live stream the audio of the debates as expressly allowed by the MOA.

Under the MOA, the Lead Networks are mandated to promote the debates for maximum audience.9 The
MOA recognizes the public function of the debates and the need for the widest possible dissemination
of the debates. The MOA has not reserved or withheld the reproduction of the debates to the public
but has in fact expressly allowed the reproduction of the debates "subject to copyright
conditions." Thus, petitioner may live stream the debate in its entirety by complying with the "copyright
conditions," including the condition that "the source is clearly indicated" and that there will be no
alteration, which means that the streaming will include the proprietary graphics used by the Lead
Networks. If petitioner opts for a clean feed without the proprietary graphics used by the Lead
Networks, in order for petitioner to layer its own proprietary graphics and text on the same, then
petitioner will have to negotiate separately with the Lead Networks. Similarly, if petitioner wants to alter
the debate audio by deleting the advertisements, petitioner will also have to negotiate with the Lead
Networks.

Once the conditions imposed under Section 184.1(c) of the IPC are complied with, the information - in
this case the live audio of the debates -now forms part of the public domain. There is now freedom of
the press to report or publicly disseminate the live audio of the debates. In fact, the MOA recognizes the
right of other mass media entities, not parties to the MOA, to reproduce the debates subject only to the
same copyright conditions. The freedom of the press to report and disseminate the live audio of the
debates, subject to compliance with Section 184.1(c) of the IPC, can no longer be infringed or subject to
prior restraint. Such freedom of the press to report and disseminate the live audio of the debates is now
protected and guaranteed under Section 4, Article III of the Constitution, which provides that "[N]o law
shall be passed abridging the freedom x x x of the press."

The presidential and vice-presidential debates are held primarily for the benefit of the electorate to
assist the electorate in making informed choices on election day. Through the conduct of the national
debates among presidential and vice-presidential candidates, the electorate will have the "opportunity
to be informed of the candidates' qualifications and track record, platforms and programs, and their
answers to significant issues of national concern."10 The political nature of the national debates and the
public's interest in the wide availability of the information for the voters' education certainly justify
allowing the debates to be shown or streamed in other websites for wider dissemination, in accordance
with the MOA.

Therefore, the debates should be allowed to be live streamed on other websites, including petitioner's,
as expressly mandated in Part VI (C), paragraph 19 of the MOA. The respondent, as representative of the
COMELEC which provides over-all supervision under the MOA, including the power to "resolve issues
that may arise among the parties involved in the organization of the debates,"11 should be directed by
this Court to implement Part VI (C), paragraph 19 of the MOA, which allows the debates to be shown or
live streamed unaltered on petitioner's and other websites subject to the copyright condition that the
source is clearly indicated.chanrobleslaw

WHEREFORE, we PARTIALLY GRANT the petition. Respondent Andres D. Bautista, as Chairman of the
COMELEC, is directed to implement Part VI (C), paragraph 19 of the MOA, which allows the debates to
be shown or live streamed unaltered on petitioner's and other websites subject to the copyright
condition that the source is clearly indicated. Due to the time constraint, this Resolution is immediately
executory.

SO ORDERED.cralawlawlibrary